Editor’s Note: Mary Ziegler (@maryrziegler) and Elizabeth Joh (@elizabeth_joh) are professors of law at UC Davis. Ziegler is the author of “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.” Joh is an expert on policing, privacy and technology and the co-host of the podcast “What Roman Mars Can Learn About Con Law.” The views expressed here are their own. Read more opinion on CNN.
At first glance, the Supreme Court’s recent decision to uphold a California animal welfare law, a victory for both the state and animal welfare activists, doesn’t seem to have much to do with abortion. But the court’s decision could have darker implications for reproductive rights.
Animal welfare advocates will cheer the court’s reluctance to second guess the state’s voters, who in 2018 adopted a ballot initiative to change the standards for eggs, pork and veal sold within the state. Proposition 12 forbids the sale of pork that comes from breeding pigs confined in crates where they could not move or lie down. In a decision written by Justice Neil Gorsuch, the court rejected the challenge brought by the pork industry’s representatives, who argued that Proposition 12 unconstitutionally required the nation’s pork producers – most of them outside of California – to change entirely the way they did business.
The central argument of National Pork Producers Council v. Ross focuses on the so-called dormant Commerce Clause. The Supreme Court has long interpreted the US Constitution’s Commerce Clause to bar the states from favoring in-state products over out-of-state products and generally burdening interstate commerce. While Proposition 12 animal welfare restrictions did not openly discriminate against interstate commerce, the challengers argued that the burdens of the law greatly outweighed the moral and health reasons California offered to justify its policy.
While the justices were unable to agree on the legal rationale for their decision, they sided with California — and reinforced every state’s ability to regulate “the sale of an ordinary consumer good within its own borders.” After all, even the challengers in Ross conceded that states could ban in-state sales of products made by child labor on moral or ethical grounds. Why would pork raised in cruel conditions be any different?
But no Supreme Court case is limited to its own facts, and the abortion issue is lurking in the background. That’s what Justice Brett Kavanaugh suggested in his separate opinion (which concurred in part and dissented in part from the majority).
If Ross is the law, there appear to be few limits on the kind of moral and policy choices states can make in restricting goods sold within their borders, even if they are made elsewhere. Here’s how that might look if applied to reproductive rights: If California can ban in-state sales of pork if it originated from a cruelly confined sow, can it ban products made by companies that refuse to pay for employees’ birth control or abortions? Can Texas ban the sales of products if produced by companies that pay for employees’ birth control or abortions?
The dormant Commerce Clause, Ross tells us, most clearly stops states from playing favorites, from rigging the rules to give their own products and businesses a leg up. That principle may not do much to protect states that treat abortion access as a protected right. States like California are not trying to help California abortion doctors outcompete providers in Texas; they are trying to protect their own citizens from criminal and civil consequences when they help people traveling from states with bans.
But some scholars and observers of the case thought that the dormant Commerce Clause stood for more: a strong presumption that states could not constitutionally apply their own laws outside of state lines. That would have made it much harder for states to target doctors, Uber drivers or anyone else whose conduct was legal in progressive states if they chose to help out-of-state abortion seekers in their efforts to terminate a pregnancy.
However, the Supreme Court in Ross decided that the dormant Commerce Clause had never stopped states from applying their laws outside of state lines in this way, leaving the door open for a kind of abortion civil war, with conservative states targeting actors in progressive states, or even vice versa.
That blue states can play the same game as red states should not be reassuring. Kavanaugh is right that just as conservative states could penalize businesses that cover out-of-state travel for abortion, progressive states could go after businesses that refused to do so.
But this balance may get one-sided sooner than later. Thus far, most of the proposals to penalize out-of-state conduct have come from the right, such as Idaho’s recent law making it a crime to help a minor travel out of state for an abortion without parental consent, and allowing lawsuits to be brought against doctors who help those minors, even if the physicians are located out of state. Anti-abortion lawyers have proposed even more aggressive strategies that would limit any interstate travel for abortion. But even if Kavanaugh is right, and we see sniping from blue as well as red states, that is still bad news, just as it was in the years before the Civil War, when interstate conflicts about the rights of enslaved persons fleeing to free states roiled the courts.
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We can hope that other constitutional arguments would nip this kind of interstate conflict in the bud. The right to travel, which has an impeccable historical origin story, is clearly at issue. If Alabama tried to prosecute a California doctor for helping an Alabamian get an abortion in California, modern legal principles should dictate that California law applies. Applying Alabama law might even violate the Constitution — by denying the California doctor due process, or failing to give full faith and credit to California’s laws.
If these arguments don’t work, we may end up with a legal free-for-all, with businesses and states going tit for tat, and seeking to impose outcomes that would be deeply unpopular on unwilling voters. No one should celebrate conflicts between states and businesses about matters as fundamental as reproductive health care. If the dormant Commerce Clause won’t be a tool to prevent this kind of conflict, we all should look for a better way.